Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Sunday, 21 January 2018

Plescia's image and the warning that "Smoking causes strokes and disability"

Can someone's own image be used without
permission?

This question may have different answers,
depending on both the context in which the relevant image is used and the legal
system considered. With particular regard to the latter, in countries that
envisage 'image rights' (or publicity rights), the availability of protection
may be even irrespective of the context in which one's own image is being used.

Italian law

This is for instance the case of Italy
which, similarly to other continental European jurisdictions, has a long-standing history of protecting image rights.

The relevant provision in the Italian
Civil Code, ie Article
10, states that if one's own image is displayed or published outside the
cases in which the display or publication is allowed by law, or in
situations which are prejudicial to the honour or reputation of the person, a
court may - upon application by the interested person - order that such use is
brought to an end, as well that damages are awarded.

In a similar tone, Article 96 of the
Italian Copyright Act states that - subject to some limitations pursuant
to Article 97 thereof
- the portrait of a person cannot be put on display, reproduced or used
commercially without their consent.

The image rights story that a number of
Italian newspapers [eg here and here] have reported is therefore quite interesting.

Maurizio Plescia

Becoming a health
warning ... without knowing it

A man from Ischia (one of the islands in
the Naples Gulf), Maurizio Plescia, was quite shocked when he found out that
his image was reproduced on the cigarette packs marketed by different
multinationals, as part of what the EU
Tobacco Products Directive calls ‘combined health warning’, ie health
warnings consisting of a combination of a text warning and a corresponding
photograph or illustration illustrating the risks of smoking.

The image of Plescia represented him while
hospitalized in Colombia. He had gone there to visit his former partner and -
further to certain breathing issues - had taken a medication to which he happened
to be allergic. Together with the initial symptoms of pneumonia, such allergic
reaction resulted in his hospitalization.

Apparently while he was lying in his
hospital bed, someone took a photograph of him. Subsequently such
photograph was included in the picture library administered by the EU
Commission pursuant to Schedule 2 of the Tobacco Products Directive, which
contains images to be used for the marketing of tobacco products [if you wish to know more about the rationale of health warnings,
see here].

Apparently Plescia was not the only one to
come forward as the person allegedly depicted in the image of the man in bed,
and this has complicated the matter further for him. However, he eventually
managed to obtain an expert certification that there are no doubts that the
person represented in the image is really him. He first contacted the companies
marketing the relevant cigarette packs, but these said that they have no control
over or responsibility for the use of the images selected for use on packaging
of cigarettes, and that the EU Commission would be rather the one to address.

What's in one's own image?

Other cases

There is abundant case law concerning the
unauthorized use of one's own image, and this blog has reported on
decisions which have found an infringement of image rights even lacking use of
one's own actual image.

Protection has been granted also in instances relating to the unauthorized use of one's own image in situations in which one was filmed during a public event. For instance, the Italian Supreme Court has held that a TV programme could not use one's own image, captured during a football match, after that event's current character has ended (in this specific case, 6 years after the match).

Some readers might have also read news reports [here, here, here] that a judge in Rome has recently ordered - at
the risk of a financial penalty - the mother of an teenager to refrain from
publishing pictures of her son on social media. Although the text of the
decision is not particularly detailed in the legal reasoning part, it seems
that also the protection of one's own image has played a role
in the conclusion reached.

A comment

Newspapers do not report whether Plescia’s
case has come to an end, but it seems quite incredible – if true - that one
could be photographed without their authorization and the resulting image could
be included in the Directive's picture library and subsequently used for combined health warnings without obtaining all necessary
permissions.

In this sense, Plescia’s case is a useful
reminder that, when it comes to using third-party images, wannabe users should not be just concerned about copyright issues (including the
non-assignable moral rights of the author of the photograph), but also the
rights of the person(s) portrayed in the photograph. The latter may present
potentially a risk also in those countries that do not explicitly recognize the
existence of self-standing image rights. In this sense, the quite recent Rihanna case in the UK is a telling
example [here and here].

5 comments:

I wonder is it not now time for the EU Commission to actively consider harmonising 'Image Rights' law for the EU. This would be in line with the GDPR and be a further demonstration that the EU will protect the privacy rights of its citizens. I cannot think of a greater invasion of privacy than to have your photograph taken without your permission while ill in hospital.

Publication is easy. As to whether it's defamatory, that's interesting! The implication of the image in that context is that the man smoked to the point of damaging his health (ie. irresponsibly). He's being used as an example and a warning to others - don't behave the way this man did.

@Niall: I agree with you, and it seems to me that the internal market argument is quite strong. I guess, however, that diverging approaches across EU Member States have made this task quite daunting ... at least so far (similarly to moral rights in copyright).

@Defumation and The Pigs: I would also think of a data protection angle here.

IPKat Policies

This page summarises the IPKat policies on guest submissions and comments. If you have posted a comment to one of our blogposts and it hasn't appeared, it may be because it doesn't match our criteria for moderation. To learn more about our guest submissions, comments and complaints policy and the procedure for lodging a complaint click here.

Has the Kat got your tongue?

Just click the magic box below and get this page translated into a bewildering selection of languages!